Almanac

News - September 2, 2009

Judge sides with MP, Atherton over rail EIR flaws

by Andrea Gemmet

Critics of a plan to send high-speed trains shooting down the Peninsula's Caltrain corridor — including the Menlo Park and Atherton city councils — won a ruling in a lawsuit challenging the environmental study of the project.

The decision returned Aug. 26 by a Sacramento County Superior Court judge found several problems with the environmental review for the massive, 800-mile-long California High Speed Rail project.

The judge's decision will require additional studies for the environmental document, something that could result in a significant delay — and added costs — to the project, according to the plaintiff's attorney. High-speed rail officials, however, say that the ruling won't slow down the project at all.

The litigants didn't win on every point in their lawsuit, as the judge rejected a number of their claims.

Judge Michael Kenny ruled against the plaintiffs over the rail authority's decision to run trains along the Pacheco Pass route. The contention that alternative routes weren't adequately studied just didn't hold up, according to the ruling.

Judge Kenny's decision will require the California High Speed Rail Authority to rescind decisions based upon the flawed environmental impact report, including the decision to run high-speed trains along the so-called Pacheco Pass route, according to Stuart Flashman, the Oakland-based land-use attorney representing the plaintiffs. Project-level studies that are under way will have to stop, he said.

"They're back to the drawing board," Mr. Flashman said.

Mike Scanlon, the CEO of Caltrain, had a very different take on the lawsuit. "Our attorneys characterized it as minor," he said at a high-speed rail meeting in Menlo Park on Aug. 26. "The court didn't say anything about recirculating (the EIR)."

Rod Diridon, a member of the rail authority's Board of Directors, said the state Attorney General's office is studying the judge's ruling to determine its impacts. He also said the impact of Kenny's judgment won't be known until the judge rules on the remedial actions the rail authority must take. Mehdi Morshed, the executive director of the rail authority, said the project's timeline won't be affected at all.

Mr. Scanlon contended that only two areas of concern were identified by the judge — the impact of vibrations from the train, and a "somewhat flawed" definition of the rail corridor from San Jose to Gilroy.

However, the ruling issued by the court clearly shows that there were four problems: inadequate project description; unsupported findings that vibration impacts can be mitigated; inadequate land-use analysis; and failure to recirculate the EIR once the Union Pacific railroad made it clear that it wouldn't allow high-speed trains to use its right of way.

Mr. Flashman said that the most significant problem with the EIR may be restrictions on the use of the Union Pacific Railroad's right of way. The high-speed rail authority said the project would do without it, but there are places in the EIR that clearly rely on the use of that right of way, Mr. Flashman said.

The rail authority said the route for the tracks isn't dependent on using the Union Pacific's right of way, but Judge Kenny said in his ruling that "drawings, maps and photographs in the administrative record strongly indicate that it is."

Tom Lange, a spokesman for Union Pacific, said that the company is not opposed to the concept of a high-speed rail system. But the proposed California high-speed system would not be compatible with Union Pacific's freight trains.

Vibrations from the train are potentially significant, Mr. Flashman said. "The authority said we can mitigate the vibrations, but that's not based on any information on the record. The court said that you had no business saying it could be mitigated."

The court also found that the description of the San Jose to Gilroy route was so vague that you couldn't tell where the project would be, so you couldn't determine what impacts it could have, Mr. Flashman said. The EIR also didn't adequately describe property impacts or land takings, he said.

The lawsuit was spearheaded by environmental and rail nonprofit groups that were previous supporters of the high-speed train project, but have since become vocal critics of the rail authority's selection of the Pacheco Pass as the route to connect trains from the Central Valley to the Bay Area. Last year, the city councils of Atherton and Menlo Park voted to join in the lawsuit. Palo Alto submitted a friend-of-the-court brief in support of the lawsuit, but it was thrown out by the judge.

Pacheco Pass plan

Under the Pacheco Pass plan, high-speed trains would connect to Gilroy from the Central Valley and shoot up and down the Caltrain corridor to connect to San Francisco. That route would serve fewer riders, and be far more environmentally damaging than the Altamont Pass route, according to the group of environmental and rail nonprofits. Rail authority officials say that it's just the opposite — Altamont would be more expensive and environmentally damaging.

Under the Altamont plan, trains would continue north into the San Joaquin Valley before heading west and crossing a new bridge across the Bay to connect to the Caltrain line — a route that could bypass Menlo Park and Atherton entirely.

The nonprofits behind the lawsuit include the Planning and Conservation League, the Transportation Solutions Defense and Education Fund, the California Rail Foundation (the educational arm of the Train Riders' Association of California) and the Bay Rail Alliance. The cost of their legal challenge will be paid for by the California High Speed Rail Authority, the judge ruled.

A separate lawsuit, over the use of the Union Pacific right of way, was recently filed by Menlo Park resident Russell Peterson.

Palo Alto Weekly staffers Gennady Sheyner and Jay Thorwaldson contributed to this report.

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